This blog focuses on news and information regarding practice in the federal courts in the Eastern District of California, with a special emphasis on criminal and civil rights cases.

Blog Author

John Balazs is an attorney in Sacramento, California, specializing in criminal defense, including appeals, habeas corpus, pardons, expungements, and civil forfeiture actions. After graduating from UCLA Law School in 1989, he clerked for Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit. John was an Assistant Federal Defender in Fresno and Sacramento from 1992-2001. He currently serves as an adjunct professor in clinical trial advocacy at the University of the Pacific McGeorge School of Law. Please email EDCA items of interest to Balazslaw@gmail.com. Follow me on twitter @balazslaw.

Disclaimer

This blog is for informational purposes only. Nothing in this blog should be construed as legal advice. The law can change rapidly and information in this blog can become outdated. Do your own research or consult with an attorney.

Attorney General

November 18, 2010

U.S. Attorney General Eric Holder has changed DOJ policy to bar U.S. Attorneys from requiring defendants to forever waive their right to DNA testing in standard federal plea agreements, as the EDCA U.S. Attorney's Office and many others currently do. As reported in today's Washington Post, 11/18/10,

The waivers have been in widespread use in federal cases for about five years and run counter to the national movement toward allowing prisoners to seek post-conviction DNA testing to prove their innocence. More than 260 wrongly convicted people have been exonerated by such tests, though virtually all have been state prisoners.

The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if evidence emerges that could exonerate them. Statistics show that innocent people sometimes plead guilty, often for a reduced sentence. One quarter of the 261 people who have been exonerated by DNA testing had falsely confessed to crimes they didn't commit, and 19 of them pleaded guilty, according to the New York-based Innocence Project.

* * *

The waivers have been part of the standard plea agreement filed by some of the nation's most prominent U.S. attorneys, including those in the District, Alexandria and Manhattan. Defense lawyers say their clients are essentially forced to sign the waivers or lose the benefits of a plea agreement, such as a lighter sentence.

Holder's memo said the DNA waiver policy is inconsistently applied and is "too rigid to accommodate the facts presented by individual cases.'' As of last year, at least 19 U.S. attorneys' offices used the waivers for some or all plea agreements, while 24 U.S. attorneys did not use them. It could not be determined how many inmates have been affected by the policy, because the remaining U.S. attorneys' offices did not respond to inquiries or declined to comment.

Now, Holder's memo says prosecutors can only seek the waivers in "exceptional circumstances" and with a supervisor's approval.

August 04, 2009

Today, a special 3-judge district court panel, including Eastern District Judge Lawrence K. Karlton, issued an Opinion that will require California to reduce its prison population by more than 40,000 over a 2-year period. [Sacramento Bee and New York Times stories added 8/5/09]. Interesting timing, only one day after AG Eric Holder gave a speech to the American Bar Association convention where he acknowledged that prisons will not solve our country's crime problems:

We will not focus exclusively on incarceration as the most effective means of protecting public safety,” Holder told the American Bar Association delegates meeting here for their annual convention. “Since 2003, spending on incarceration has continued to rise, but crime rates have flattened.”

“Today, one out of every 100 adults in America is incarcerated — the highest incarceration rate in the world,” he said. But the country has reached a point of diminishing returns at which putting even greater percentages of America’s citizens behind bars won’t cut the crime rate.

“Most crimes in America are committed by people who have committed crimes before,” Holder said. “About 67 percent of former state prisoners and 40 percent of former federal prisoners are re-arrested within three years of release. If we can reduce the rate of recidivism, we will directly reduce the crime rate.”

July 10, 2009

Putting politics aside, we must address the fact that, simply put, there is a crisis in indigent defense in this country. Resources for public defender programs lag far behind other justice system programs, constituting only about 3 percent of all criminal justice expenditures in our nation’s largest counties. In many cases, contract attorneys and assigned lawyers receive compensation that does not even cover their overhead. We know that defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients. We hear of lawyers who cannot interview their clients properly, file appropriate motions, conduct fact investigations, or do many of the other things an attorney should be able to do as a matter of course.

No, not some crazed defense attorney, but the Attorney General of the United States in a speech last night. His whole speech is worth a read.

June 21, 2009

Talk Left has these encouraging tidbits from Attorney General Eric Holder's talk at the D.C. Circuit's Judicial Conference on Friday:

It is the view of this Administration that the 100-to-1 crack-powder sentencing ratio is simply wrong. It is plainly unjust to hand down wildly disparate prison sentences for materially similar crimes. It is unjust to have a sentencing disparity that disproportionately and illogically affects some racial groups. I know the American people can see this. And that perception of unfairness undermines governmental authority in the criminal justice process and breeds disrespect for the system. It leads victims and witnesses of crime to think twice before cooperating with law enforcement, tempts jurors to ignore the law and facts when judging a criminal case, and draws the public into questioning the motives of its officials.

Although we defense attorneys have been saying this for years, it's refreshing coming from the Department of Justice itself. With more federal judges adopting a 1:1 ratio under section 3553(a), see, e.g., N.D. Iowa opinion highlighted here, there's more and more ammunition for using a 1:1 ratio as a starting point for plea negotiations and sentencings. The DOJ crack memo available here gives line AUSAs authority to agree to variances in individual cases and suggests the 1:1 ratio as an appropriate starting point.

Finally, Prof. Berman's Sentencing Blog includes these insights from Michael Nachmanoff, a federal public defender in Alexandria, Va., who testified before Congress last year, about the inconsistent nature of federal crack cocaine sentencings across the country:

"Lanny Breuer said point blank that the ratio should be 1-to-1," Nachmanoff says. "Prosecutors around the country today could start charging on a 1-1 ratio and avoid the mandatory minimums."

Cases in the pipeline would be more difficult, but when it comes time to sentence those offenders, prosecutors could seek to vacate the conviction with the idea of following with an information charging possession of lesser amount that don't trigger the mandatory sentences, he says. "Unfortunately, there is a gap between the expression of a changed policy on the part of the assistant attorney general and what is happening in the field," he says.

He says that in talking to defense lawyers around the country, "what we see is there is a huge amount of variation in the way prosecutors are handling these cases, even within a district to district." "In some parts of the country, prosecutors are telling a judge the 1-1 ratio is the way to go, but it sounds like prosecutors in New Jersey or other states maybe aren't saying that clearly or acting that way," Nachmanoff says.

In the meantime, defense lawyers are attaching copies of Breuer's testimony to their sentencing pleadings "and telling judges, 'this is the position of the Justice Department, whatever the people in the field are saying,' " Nachmanoff says.

May 06, 2009

According to this piece in the National Law Journal, Attorney General Eric Holder met with about 90 federal district judges,

At the meeting, Holder said improvements to the Office of Professional Responsibility were imminent. "The attorney general said he was going to take [OPR] complaints very seriously and that the whole process has to be more transparent and timely resolved," said one chief judge.

Holder invited the judges to contact him directly about problem prosecutors and other areas of concern. He even gave the crowd his phone number, a symbolic gesture that resonated with many judges who say the department's emphasis on national security, while justified, has put distance between the two branches in recent years. The judges said Holder won high marks for his candor and attentiveness. (He received two standing ovations -- one more than any visiting attorney general in recent memory, the judges said.) . . .

Holder also said his department would take steps to eliminate the vast disparities in federal sentencing for possession of crack versus powdered cocaine and expressed his commitment to look into alternative courts to deal with drug-related offenses, the judges said.